Emergency FMLA and Paid Sick Leave- What Employers Need To Know

On March 18th President Trump signed the Families First Coronavirus Response Act.  This new law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA and emergency paid sick leave in certain limited circumstances.   Some of the highlights are discussed below.

Beginning and End Date: Both the expanded FMLA and the emergency paid sick leave provisions  take effect on April 2, 2020 and expire on December 31, 2020.

What Employers Are Covered?  Both provisions apply to all employers with fewer than 500 employees, including public agencies.  Both allow employers of an employee who is a healthcare provider or an emergency responder to elect to exclude the employee from these two provisions. Both also allow subsequent Department of Labor regulations to exempt small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business.

Who Is Eligible?  Under the FMLA provision both full and part-time employees who have been on the employer’s payroll for 30 days are eligible.  But the paid sick leave provision applies to all employees, regardless of length of service.

What reason qualifies for the FMLA expansion? This is limited to an employee who cannot work or telework due to the need to care for the employee’s minor son or daughter if the minor child’s school or place of childcare has been closed, or the childcare provider is unavailable due to a “public health emergency” with respect to COVID-19 declared by a federal, state or local authority. Basically, it is “caregiver leave”.

Is any of this expanded FMLA leave paid?  Yes.  The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including the new emergency paid sick leave. The remaining leave ( a maximum of 10 weeks,  as the total available is still 12 weeks) is paid at 2/3 of the employee’s regular rate, for the number of hours the employee would be otherwise scheduled to work.  This pay is capped at $200 a day and $10,000 total.

Is expanded FMLA leave job protected? Yes, the employee must be restored to the same or equivalent position.  However, there is an exception for employers with less than 25 employees, if the employee’s position no longer exists due to operational changes related to the public health emergency, such as a reduction in force or restructuring because of a downturn in business.

What qualifies for emergency paid sick leave? The inability to work or telework due to any of the following:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health-care provider to self-quarantine because of COVID-19;
  3. The employee is experiencing symptoms of (you guessed it) COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual ( note, NOT a family member) subject to a quarantine or isolation order, or advised to quarantine or isolation;
  5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions;or
  6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor ( a catch-all!)

How much emergency paid sick leave is required? 80 hours maximum, but available immediately, so no accrual requirement.   Paid at the regular rate of pay for reasons 1-3 above (employee is sick), with a maximum of $511 a day and $5,110 in total.  For reasons 4-6 above (caregiver reasons) it is paid at 2/3 the regular rate of pay, with a maximum of $200 a day and $2,000 in total.

Can I require  employees to use paid leave under an existing policy before using this new emergency paid leave? No. The emergency paid leave is supplemental.

Does the unused emergency sick leave carryover ? No, the unused leave does not carryover to the next year.  It also does not have to be paid upon termination under this law, but your state law might require it to be paid, so check that before you make a final decision.  Under current Tennessee law, so long as you state in the policy that it will not be paid upon termination you do not have to pay it.

Do I get a tax break? Potentially under both the expanded FMLA and the emergency sick leave provisions.   Talk with one of the lawyers at my firm who does tax law, or your accountant.

Of course, you cannot retaliate against an employee for exercising his or her rights under these new laws. You will also have to post a Notice detailing these laws, and the Department of Labor is  in the process of drafting that Notice.

There are a lot of issues and open questions with these sweeping changes.  If we can help you to further navigate these uncharted waters please give us a call.

 

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